227 Pa. 154 | Pa. | 1910
Opinion by
February 14, 1910:
The testator, Charles D. Freeman, died May 1, 1891, leaving a will wherein he provided as follows: “ I give and devise and bequeath all my real and personal estate to my wife to take and use the same and the net income thereof during all the term of her natural life and without giving security as life tenant thereof.” He left him surviving a widow, S. Augusta Freeman, and five children, Henry B. Freeman, Isobel
While the learned judge who last spoke for the orphans’ court affirmed the distribution as awarded by the auditing judge, he arrived by a different path at the conclusion that Canfield Darwin Freeman, or his estate, Avas entitled to a distributive share, and in so doing he criticised the credibility of certain of the witnesses who had testified that this son had been last heard of within less than seven years prior to the death of his father; but he did not modify or set aside the findings of fact to that effect made by the auditing judge. Exceptions that “The learned court erred in finding that the son, Canfield Darwin Freeman, had left the city about 1883, having been last heard of three or four years later,” and, “The learned court erred in not finding that the son, Canfield Dar-Avin Freeman, was dead at the date of the death of the decedent, to wit, May 1st, 1891,” were dismissed, thereby affirming the findings of the auditing judge. These findings not having been changed by the court below, and an examination of the evidence failing to show any manifest error therein, we must take it as a fact that Canfield Darwin Freeman survived his father.
The rule is, Avhere a person leaves his home and place of residence for temporary purposes, and is not seen, heard of, or known to be living for the term of seven years thereafter, at the end of that time he is presumed to be dead: Burr v. Sim, 4 Whart. 150; Bradley v. Bradley, 4 Whart. 173; McCausland’s Est., 213 Pa. 189. The appellant contends that the learned judge beloAV fell into error by a misstatement of this rule. It is sufficient to say as to this, that it was but harmless error, as it did not change or affect the distribution under review.
On the question of the share awarded to the estate of the widow. The decedent disposed of his property for the life of his wife, Avithout any disposition over, thus leaving an intestacy after the life estate. The property vested by virtue